Caveat Vendor

Eight years after being signed into law, California’s menu labeling law will finally go into effect on December 1, 2016. While FDA has delayed enforcement of the federal menu labeling standard until May 5, 2017, California’s Department of Public Health confirms that local health departments may begin inspecting restaurants subject to the statewide standard as early as December 1, 2016. The California Department of Public Health has recommended, however, that local health departments work with restaurants on complying with the law and not issue violations during the first six months of enactment.

In 2008, California became the first state in the U.S. to pass a menu labeling law requiring the disclosure of calorie information on restaurant menus and menu boards. The law initially applied only to chain restaurants that had at least 20 locations in the state and was set to take effect in 2011. After Congress passed the Affordable Care Act in 2010, however, the California legislature repealed its original menu labeling law and replaced it with a new version that was identical to the menu labeling provisions of the ACA. California also delayed implementation of its statewide standard until the compliance date of the federal FDA rule.

The compliance date of FDA’s menu labeling rule has been pushed back a number of times since the rule was finalized in December 2014. The rule was originally supposed to take effect on December 1, 2015, but prior to that date FDA agreed to extend the compliance date one year to December 1, 2016, in response to concerns from the restaurant and grocery industry and to accommodate the issuance of clarifying guidance. In an unexpected move, Congress then attached a condition to its 2016 Omnibus Appropriations Bill which prohibited FDA from using any funding to implement, administer, or enforce the menu labeling requirements until May 5, 2017 (or one year after FDA finalized its guidance document).

FDA has confirmed that, although the agency will not begin enforcing the menu labeling law until May 5, 2017, the official compliance date remains December 1, 2016. As the California law is tied not to the enforcement date of the FDA rule but to the compliance date, California’s menu labeling law will also go into effect on December 1, 2016. The Food and Drug Branch of California’s Department of Public Health recently issued a public notice confirming that the agency does not intend to delay enactment of the menu labeling standard beyond this date. The California agency does recommend, however, that the local health departments responsible for enforcing the law adopt an “educational approach” for the first six months, so as to allow businesses an opportunity to come into compliance with the new requirements. This recommendation suggests that the state might hold off on issuing violations (which could range from $50 to $500 for an initial violation) until June 2017, at which point FDA will also be enforcing the federal menu labeling standards.